State Consumer Disputes Redressal Commission
Ms. Madhu Uppal vs M/S Chandigarh Overseas Pvt. Ltd. on 12 December, 2022
FA. NO./456/2018 D.O.D.: 12.12.2022
MS. MADHU UPPAL VS. M/S CHANDIGARH OVERSEAS PVT. LTD.
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution: 26.10.2018
Date of hearing: 20.09.2022
Date of Decision: 12.12.2022
FIRST APPEAL NO.- 456/2018
IN THE MATTER OF
MS. MADHU UPPAL,
W/O Mr. Satinder Nath Uppal,
R/O C- 3/2 Rajouri Garden,
New Delhi - 110027.
(Through: Mr. Rajeev Tewari, Advocate)
...Appellant
VERSUS
M/S CHANDIGARH OVERSEAS PVT LTD.,
Through Its Authorised Representative
1005, 10th Floor, Antriksh Bhawan,
Kasturba Gandhi Marg, Connaught Place
New Delhi - 110001.
ALSO AT:
M/s CHANDIGARH OVERSEAS PVT LTD.,
Through Its Authorised Representative,
Mr. Abhey Kumar
Having H.O. at: SCO 196-197, Top Floor, Sec-34A
Chandigarh - 160032.
(Through: Mr. Sukaam Gupta, Advocate)
...Respondent
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
Present: None for the Parties.
ALLOWED PAGE 1 OF 10
FA. NO./456/2018 D.O.D.: 12.12.2022
MS. MADHU UPPAL VS. M/S CHANDIGARH OVERSEAS PVT. LTD.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
PRESIDENT
JUDGMENT
1. The facts of the case as per the District Commission record are:
"The complainant booked part of the design studio unit vide application dated 11.11.2010 having super area of 76.2 sq.mt. on 6th floor of Design Pavilion-II and entered into Buyer Developer Agreement on 31.1.2011. The total cost of the unit was Rs.5,00,000/- and the same was paid by the complainant to the OP. It is alleged that the OP had agreed to hand over the possession of said unit by 1.9.2011 and on failure to hand over the possession, he would liable to pay Rs.50/- per sq.ft. per month as damages. It is further alleged that despite promise, the OP had failed to hand over the possession of the alleged unit till date. The legal notice dated 19.11.2013 was sent to the OP but the service of the same was evaded by the OP and the legal notice were received back undelivered with vague postal remarks. It is alleged that only a meager amount of Rs.50,000/- was paid by the OP to the complainant and a sum of Rs.7,00,000/- is yet to be paid by the OP as per the clause No.25 of Buyer Developer Agreement."
2. The District Commission after taking into consideration the material available on record passed the Judgment dated 20.09.2018, whereby it held as under:
"On the issue of Commercial Unit booked by the complainant we are guided by Hon'ble National Commission in Rajesh Gulati and another Vs. DLF Commercial Complex Ltd. 2016 (2) CPR 219 in which it was held that:
"It is not disputed that the complainants had booked the office space in the commercial project undertaken by the OP. Therefore, if we go by the definition of "consumer" as envisaged under section 2(1)(d)(ii), it is clear that the ALLOWED PAGE 2 OF 10 FA. NO./456/2018 D.O.D.: 12.12.2022 MS. MADHU UPPAL VS. M/S CHANDIGARH OVERSEAS PVT. LTD.
complainants do not fall within the definition of "consumer" as they have availed of the services for the commercial purpose, unless their case is covered under the Section 2(1)(d) of the C.P. Act.
Section 2(1)(d) of the Act defines the term "Consumer" as under:
2 (1) (d) "Consumer" means any person who -
(i) Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale of for any commercial purpose; or
(ii) [hires avails of] any services for a or consideration which has been paid or promised or partly paid any partly promised, or under any system of deferred payment and includes any beneficiary or such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid any partly promised, or under any system of deferred payment, when such are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose];
Explanation - For the purposes of this clause, "commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self- employment} On reading of the above, it is clear that in order to avail benefit of the explanations, the onus lies on the complainant to show that they have availed the services of the opposite party exclusively for the purpose of earning their livelihood by means of self-employment. In order to find out whether or not the complainants are covered within the explanation, ALLOWED PAGE 3 OF 10 FA. NO./456/2018 D.O.D.: 12.12.2022 MS. MADHU UPPAL VS. M/S CHANDIGARH OVERSEAS PVT. LTD.
we have perused the affidavit evidence filed by the parties on the issue of maintainability.
So far as the explanation is concerned, para 5 and 28 of the affidavits of the respective complainants are relevant. Both the complainants have filed affidavit with identical language. Para 5 and 28 of the respective affidavits are reproduced as under:-
"5. That on the basis of information provided by the respondent and on the assurance given by it to the effect that the respondent would complete the construction of the said complex within three years from the date of booking, for my use, I along with the complainant No. 2 applied for allotment of a unit in the said complex/DLF Towers, at a consideration of Rs. 1,82,88,000/- plus Rs. 6,00,000/- towards parking space and as per terms and conditions, then intimated, and paid a sum of Rs, 7,50,000/- towards booking amount, vide following cheques :
a. Cheque No. 000046 dated 8/3/08 for Rs.3,75,000/- drawn on Kotak Mahindra Bank Ltd., payable at New Delhi and b. Cheque No. 756899 dated 8/3/08 for Rs. 3,75,000/- drawn on Indian Bank, payable at new Delhi Both the cheques were duly acknowledged vide receipt No. QEC/Sales/DSH427/SHPO20R=16869 dated 8/3/08. Copy of the receipt dated 8/3/08 bas been filed on record and is exhibited as Exhibit CW-1/1.
28. That since the respondent had not yet commenced any construction work at the site and in the facts and circumstances the respondent will not be able to complete the construction work at site and will not be able to deliver the said unit to me along with the complainant No. 2 as it was promised while seeking booking from me along with the complainant No. 2, the respondent is guilty of having rendered deficient services, and committed unfair trade practices. The respondent by its said conduct has also caused damage and loss to me along with the complainant No. 2 as I along with the complainant No. 2 have not been able to get the possession of the unit booked by us, which was for our own personal use, and for the said reason, I ALLOWED PAGE 4 OF 10 FA. NO./456/2018 D.O.D.: 12.12.2022 MS. MADHU UPPAL VS. M/S CHANDIGARH OVERSEAS PVT. LTD.
along with the complainant No. 2 value the said loss and damage of Rs. 5,00,000/- and the said amount is payable by the respondent to me along with the complainant No. 2."
On reading of the above, it is clear that if the affidavits are to be believed the subject unit was booked by the complainants jointly for their personal use affidavit nowhere states that subject unit was booked exclusively for the purpose of earning livelihood by way of self- employment. Therefore in our considered view the case of the complainants is not covered, within the exclusion clause, Reference be made to the decision of this Bench in the matter of Inder Nath Mehra & Ors. Vs. Purearth Infrastructure Ltd. decide on 15/5/15.
5. In the present case also complainant has mentioned in her complaint and affidavit that she had booked part of the design studio unit vide application dated 11.11.2010 having super area of 76.2 sq.mt. on 6th floor of Design Pavilion-II and entered into Buyer Developer Agreement on 31.1.2011. The bare perusal of clause No.5 of Buyer Developer Agreement dated 31.1.2011 make it clear that the Industrial Units was purchased by the complainant for the occupation/business and it is nowhere stated by the complainant in its complaint as well as in the evidence by way of affidavit that the alleged unit was booked exclusively for the purpose of earning livelihood by way of self-employment. Admittedly, the commercial unit was booked by the complainant, it is obvious that the services of the OP were availed for commercial purpose and as such, in view of the exclusion carved out under Section 2 (1) (d) (ii) of the C.P. Act, 1986. The complainant is not the "Consumers" in the light of Rajesh Gulati's Case (supra).
6. In view of the discussion above, the instant complaint is not maintainable. Hence, the complaint is dismissed with liberty to the complainants to avail of their remedy by moving appropriate court as per law."
3. Aggrieved by the aforesaid judgment of the District Commission, the Appellant/Complainant has preferred the present appeal contending that the District Commission has erred in holding that the Complainant/ ALLOWED PAGE 5 OF 10 FA. NO./456/2018 D.O.D.: 12.12.2022 MS. MADHU UPPAL VS. M/S CHANDIGARH OVERSEAS PVT. LTD.
Appellant is not a consumer. The Appellant further contended that the said unit was purchased for earning her livelihood by means of self- employment. Pressing the aforesaid contentions, the Appellant prayed to set aside the impugned judgment of the District Commission.
4. Notice of the present Appeal was issued to the Respondent and was directed to file reply to the present appeal. However, despite multiple opportunities, the Respondent failed to file the same till date.
5. We have perused the material available on record.
6. The main question for consideration before us is whether the Appellant fall within the definition of consumer as defined under Section 2(1)(d) of Consumer Protection Act, 1986.
7. To resolve this issue, we deem it appropriate to refer to the First Appeal nos. 17, 18, 19 and 20 of 2011 titled as Emaar MGF Land Ltd. and Ors. vs. Chanbir Singh Mann and Ors. decided on 01.11.2019, wherein the Hon'ble NCDRC has held as under:
"18. ........Needless to add, this Commission in order dated 13.01.2018 in First Appeals No. 1260 to 1262 of 2016 (M/s. Landmark Apartment Pvt. Ltd. Vs. Ms. Parnita Garewal) has held that the Complainants were Consumers though they had purchased commercial space in an IT Park and that whether such a purchase falls strictly within the definition of commercial purpose or not depends on the facts and circumstances of each case and that the onus shifts on the Developer to establish whether the Complainants while purchasing commercial space are dealing in real estate or in the purchase and sale of the subject property purely with an intention of making profits. This ratio has attained finality as SLPs, preferred against this order ALLOWED PAGE 6 OF 10 FA. NO./456/2018 D.O.D.: 12.12.2022 MS. MADHU UPPAL VS. M/S CHANDIGARH OVERSEAS PVT. LTD.
has been dismissed by the Hon'ble Supreme Court. At the cost of repetition, in the instant case no such evidence has been filed and the Developer has failed to discharge the onus."
8. Further, it is imperative to refer to the dicta of the Hon'ble National Commission in CC-1122/2018 titled Narinder Kumar Bairwal and Ors. vs. Ramprastha Promoters and Developers Pvt. Ltd. and Ors. decided on 01.11.2019, wherein, the Hon'ble National Commission has held as under:
"19. The contention of the Learned Counsel that the said Apartments were purchased for commercial purpose is not supported by any documentary evidence as the onus shifts to the Opposite Parties to establish that the Complainants have purchased the same to indulge in 'purchase and sale of flats' as was held by this Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31. The Opposite Parties failed to discharge their onus and we hence hold that the Complainants are 'Consumers' as defined under Section 2(1)(d) of the Act."
9. From the aforesaid dicta of the Hon'ble National Commission, it flows that onus is upon the Respondent/ Opposite Party to prove that the unit purchased by the Appellant/ Complainant was for commercial purpose, by way of some documentary proof. However, in the present case, the Appellant has clearly pleaded in the Appeal that she has purchased the part of the said unit for earning livelihood by means of self- employment. Moreover, nothing has been brought on record by the Respondent before the District Commission as well as before this Commission to rebut the pleadings of the Appellant. Also, we find that the District Commission has erred in holding that the Appellant/ ALLOWED PAGE 7 OF 10 FA. NO./456/2018 D.O.D.: 12.12.2022 MS. MADHU UPPAL VS. M/S CHANDIGARH OVERSEAS PVT. LTD.
Complainant does not fall under the category of Consumer only by observing that a commercial space has been purchased by the Appellant. Therefore, we reverse the findings of the District Commission and hold that the Appellant falls under the category of Consumer as defined under section 2(1)(d) of Consume Protection Act, 1986.
10. As eight years have already lapsed and the Consumer Complaint is of the year 2014, we do not find it a fit case to remand the matter to the District Commission. Therefore, we decide to adjudicate the present matter on merits as well. On perusal, we find that as per Builder Developer Agreement dated 31.01.2011, the Respondent had assured the Appellant that they will handover the possession of the said unit by 01.09.2011. However, the said unit in question has not been handed over till date to the Appellant. Further, the Appellant submitted that as per clause 25 of the Builder Developer Agreement, the Respondent undertakes to provide an amount of Rs. 7,50,000/-, in case if the buyer wants to sell back the said unit to the Appellant. Moreover, it is also an admitted fact by the Appellant that she had already requested the Respondent to cancel the agreement as the Respondent failed to handover the possession of the said unit and on the request of the Appellant, the Respondent had paid an amount of Rs. 50,000/- till date in lieu of the said cancellation.
11. Now we address ourselves to whether the Appellant is entitled to the amount sought for under Clause 25 of the Builder Developer Agreement dated 31.01.2011. It is an admitted fact that the Respondent/ Developer did not deliver legal possession of the unit, though more than ten years have lapsed. The Hon'ble Supreme Court in Kolkata West ALLOWED PAGE 8 OF 10 FA. NO./456/2018 D.O.D.: 12.12.2022 MS. MADHU UPPAL VS. M/S CHANDIGARH OVERSEAS PVT. LTD.
International City Pvt. Ltd. Vs. Devasis Rudra, II (2019) CPJ 29 (SC), has laid down that the flat purchaser could not be made to wait inordinately for possession. In that case the Hon'ble Supreme Court has observed that a period of 7 years is an inordinate period of delay. In the instant case, it is pertinent to mention that the Builder Developer Agreement was executed into way back on 31.01.2011 and more than ten years has lapsed, which can be construed as an inordinate delay.
12. Consequently, we hold that the Respondent is deficient in providing its services to the Appellant/Complainant since it has failed to handover the remaining amount of Rs. 7,00,000/- to the Appellant as per clause 25 of the Builder developer Agreement dated 31.01.2011.
13. Therefore, keeping in view the facts of the present case and the extensive law as discussed above, we direct the Respondent to refund the remaining amount assured by the Respondent as per clause 25 of the Buyer Developer Agreement dated 31.01.2011 i.e. Rs. 7,00,000/- along with interest as per the following arrangement:
A. An interest @ 6% p.a. calculated from the 31.01.2014 (bring the date on which the Respondent is liable to refund the said amount) till 12.12.2022 (being the date of the present judgment);
B. The rate of interest payable as per the aforesaid clause (A) is subject to the condition that the Respondent pays the entire amount on or before 12.02.2023;
C. Being guided by the principles as discussed above, in case the Respondent fails to refund the amount as per the aforesaid clause (A) on or before 12.02.2023, the entire amount is to be refunded along with an interest @ 9% p.a. ALLOWED PAGE 9 OF 10 FA. NO./456/2018 D.O.D.: 12.12.2022 MS. MADHU UPPAL VS. M/S CHANDIGARH OVERSEAS PVT. LTD.
calculated from 31.01.2014 till the actual realization of the amount.
14. In addition to the aforesaid and taking into consideration the facts of the present case, the Respondent is directed to pay a sum of:
A. Rs. 1,00,000/- as cost for mental agony and harassment to the Appellant; and B. The litigation cost to the extent of Rs. 50,000/-.
15. Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment.
16. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
17. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) Pronounced On:
12.12.2022 ALLOWED PAGE 10 OF 10